Download Suitability - Alastair Hudson`s

SUITABILITY
Definition
Suitability is a term which, it is suggested, offers a bridge between the liability of
financial institutions under substantive law and the standards of behaviour required of
such financial institutions by financial regulation. It is suggested that when considering
the common law or equitable liabilities of financial institutions, in the areas covered in
this [essay], the courts should consider whether or not such an institution has acted
suitably: that is, suitably within the requirements made by formal financial regulation as
to the manner in which any given financial instrument or investment has been provided
for a given client and the intrinsic appropriateness of that financial instrument or
investment for that client.
The political question
The political question raised by this argument is a serious one: to wit, how can one justify
treating financial institutions differently from other legal persons? Should not all people
before the law be dealt with according to the same principles. The use of the suitability
approach, it is suggested, avoids the possibility of financial institutions escaping liability
by dint of arguing that they did not act unreasonably when, for example, losing a client’s
money because, for example, the market movements which caused that loss could not
have been anticipated by that financial institution. The bridge which most legal doctrines
make at this point is to demand that a person who represents herself as having some
particular expertise in an area – such as a financial advisor – must be required to display a
different quality of reasonableness from a person who does not hold herself out as having
such expertise.
The jurisprudential question
The distinction between financial regulation and substantive law
The notion of suitability
The breadth of claims covered
THE SUITABILITY APPROACH
The suitability approach aims to identify a means of addressing the availability of
proprietary remedies, and to uphold the efficacy of credit support language in commercial
and financial transactions, in a manner which both recognises the commercial intentions
of the parties and minimises the problems associated with the application of the
restitutionary and equitable responses currently permitted by statute. The term
‘suitability’ is culled from American financial regulatory jurisprudence and has been used
by some English commentators.1 The term itself is designed to encompass a sense of the
“appropriateness” of both the manner in which the derivatives product is created and in
its correlation to the commercial requirements of its end-user. Suitability finds a basis in
the general jurisprudence of equity2 in the context of those actions which are found to be
so contrary to conscience that a proprietary claim or entitlement to compensation will be
ordered to compensate the plaintiff. For example, where a seller unduly influences a
buyer, or relies on some unjust factor in the creation of the product, which would
occasion and equitable claim. The concept of suitability would also capture cases of misselling of products by making misrepresentations to the buyer or otherwise exerting
unacceptable pressure or selling an inappropriate product: in either case, invoking
principles of the law of contract or the law of tort.
The following section aims to set out the core principles which ought to be applied in
relation to arm’s length commercial transactions when considering the claims available to
the parties. This discussion incorporates a discussion of those principles which have not
been discussed in the local authority swaps cases but which, it is submitted, ought to form
a part of the suitability approach to claims and remedies in financial transactions. The
motivation behind the suitability approach is the need to develop claims and remedies
which recognise the commercial intentions of the parties to financial derivatives
transactions.3 The aim is to use general equitable principles from other contexts to meet
the specific needs of commercial life.4 Conscience, as a general principle advanced by
Lord Browne-Wilkinson, would appear to apply to commercial situations only in cases
where there is fraud or breach of fiduciary duty. On existing authority, there is no explicit
1
See, for example Hudson, The Law of Financial Derivatives, 2nd edn., (1998), chapter 5.
Or in the language of restitution in the context of those unjust factors which will give rise to a claim for
some equitable response.
3
It is not suggested that there be a code of rules specifically for one kind of financial product. Rather, it is
said that there are common features to all commercial transactions which take them outwith the ordinary
run of equitable and restitutionary situations.
4
For example, the common intention constructive trusts considered below, have been created specifically
by reference to family situations where there is no commercial allocation of the risks of a bargain.
Similarly, as considered above, the application of a test of ‘knowledge’ and ‘conscience’ does not transfer
straightforwardly to the commercial context.
2
suggestion that common intention manifested in void commercial contracts ought to
create some equity requiring performance in accordance with the allocation of risks under
those agreements. Further, there is no analysis in the decided cases as to whether or not
the factors affecting the conscience of the seller of a derivative product, thus able to
found a constructive trust, would include the creation of an unsuitable financial product
for a client. However, it is these issues which reflect most closely the substantive issues
raised by the swaps cases and which will be explored in the suitability approach.
The radical restitutionary approach could similarly provide the basis for the award of a
restitutionary response in circumstances where a payer loses the use of property or suffers
some subtraction, to the benefit of the payee, which might be said to constitute an unjust
enrichment. There is perhaps a further question, in the financial context, concerning other
principles which might be deployed to reflect the parties’ allocation of risks and
consensual purpose - in short, the suitability of the product for its purpose.
What is not being suggested in the following section is that a proprietary right ought
necessarily to be made available in all commercial cases in the manner that some trading
floors might like to see it. It is not even the suggestion of the following section that the
banks ought necessarily to have recovered proprietary rights in money paid to the
authorities where it is clear that they allocated risks but not clear that they sought to retain
proprietary title in the property transferred to the local authorities. In this regard, it is
contended that the standard market documentation is defective in that it provides for the
payment of termination amounts but not for the preservation of equitable title in property
transferred under swaps contracts. However, as discussed above with reference to
Problems of Credit and Security,5 it is contended that even if those contracts had
provided for the preservation of title, such provisions would not have been effective.
What is contended in the following section is that commercial situations constitute a
different case from domestic and family home situations in that the parties are acting at
arm’s length as commercial people and ought to be bound by the agreements which they
form. To fail to hold the parties to their agreements is to create an unacceptable level of
commercial uncertainty. In line with the developing concretisation of the principles of
equity in recent cases, equity ought to be able to develop principles which accept the
allocation of commercial risks and which are capable of even application without
introducing further commercial uncertainty. Alternatively, it is said, that principles of the
law of restitution ought to be capable of adaptation to meet the requirements of
commercial transactions.
There is reserved within the scope of this suitability response scope for the courts to
apply mandatory rules, such as the ultra vires principle, to those commercial actions
which ought not to be supported by law. It is suggested however, that, unless the
provision of credit support is itself found to be contrary to law, the efficacy of the
intentions of the parties as to their proprietary and other rights ought to remain binding.
5
Chapter 4, Issues of Finance and Law.
I.
Severance: an approach based on the law of contract
The following discussion of principles of equity and the ensuing discussion based on
restitution of unjust enrichment both consider the refusal of the House of Lords in
Islington to deal with the terms of the standard market contract. In defence of the
suitability approach that is set out here, it is submitted that even in the case of contracts
which are found to be void ab initio with reference to their core commercial purpose, it is
open to the court to seek to apply the risk management provisions of those agreements in
spite of the avoidance of the remainder of the contract. This approach is based on the
application of the basis of severance. In short, the application of this doctrine would
permit enable the application of principles of equity or of restitution to reduce systemic
risk in commercial contracts by giving effect to those prudent elements of contractual
agreements6 which do not offend against public policy or the other caveats set out below.
The doctrine of severance was considered above in Equity and Modern Financial
Techniques.7 The doctrine provides that, where a contract is held to void on grounds that
it offends public policy or is illegal, the offending part of the agreement can be severed
from those elements which do not offend against lawfulness or public policy. This
severance has the effect of ensuring the validity of those parts of the contract which are
maintained. The issue arises then whether any part of the agreements entered into in the
swaps cases would have been capable of severance in the manner considered by Dillon
LJ. The offensive parts of the swap agreements, as considered by Lord Templeman in
Hazell, were the elements relating to the ultra vires borrowing. The issue remains
whether Hazell constitutes a case motivated by the desire to rectify the potentially
enormous obligations which would have been visited on the ratepayers of Hammersmith
and Fulham. Debt management with speculative financial products is the objection
identified by the House of Lords.
The classic statement of the doctrine of severance is that: ‘where you cannot sever the
illegal from the legal part of a covenant, the contract is altogether void; but, where you
can sever them, whether the illegality can be created by statute or by common law, you
may reject the bad part and retain the good.’8 The decision of Megarry J. in Spector v.
Ageda 9 held that the whole of the contract must be considered to be void even where a
part only of the agreement had been found to be illegal by operation of statute. The policy
identified in this decision was to prevent parties to illegal contracts from putting
themselves into further harm by enforcing other contracts. Similarly, in Esso Petroleum
v. Harper’s Garage (Stourport) Ltd. 10 it was held that where covenants in a contract are
so closely connected that they can be deemed to stand or fall together, the whole contract
will fail even though some sections may appear to be severable.
6
Whether negotiated on a bespoke basis or founded on standard market contracts.
Chapter 5.
8
Pickering v. Ilfracombe Railway (1868) L.R. 3 C.P. 235, 250; Payne v, Brecon Corporation (1858) 3 H.
& N. 572; Royal Exchange Assurance Corporation v. Siforsakrings Aktiebolaget Vega [1901] 2 K.B. 567,
573; Chitty on Contracts, 27th edn. (Sweet & Maxwell, 1994), para. 16-165.
9
[1973] Ch. 30.
10
[1968] A.C. 269, 314, 321.
7
It is submitted, however, that the risk management features of standard market financial
documents introduce greater certainty and lessen the cash amounts required to be paid
between market participants. Therefore, the identified policy of precluding the parties
from entering into further damaging transactions does not apply in the context of a
provision, such as a netting clause on termination, which reduces the net amount of the
parties’ exposure to one another. The validity of an instrument need not be compromised
because some element of it is held to unenforceable.11
The purpose of the interest rate swap is the creation of two streams of cash flows related
to a notional amount of money, with the underlying purpose of acquiring some
speculative return or hedging a financial risk. The conservative argument would provide
that, where those functions are held to be ultra vires ab initio, there is no possibility of
upholding any part of the agreement. However, those elements of the agreements which
relate to the termination of those agreements and the calculation of termination amounts
to settle all outstanding obligations and to deal with the re-allocation of property, do not
appear to fall into the same category as the active provisions of the swap agreements
which provide for the economic terms of the contracts. Therefore, it is submitted, that as
part of the suitability approach, it would have been possible for the courts to have
segregated the economic provisions that created the interest rate swaps, from those risk
management provisions which seek to provide for termination and risk allocation.
It is settled law that the court will not re-write the contract as part of severance.12 The
court will not therefore blue-pencil any part of the agreement such that there is an effect
which is materially different from that which the parties had agreed to originally.
However, it is not clear that the effect of enforcing the termination provisions of a
financial agreement, where they regulate the manner in which termination takes effect
and the rights of the parties to property, would effect a materially different agreement.
The problem with the application of this principle is the basic assertion by the courts that
the entire contract was void ab initio, even though the courts did not consider the range of
terms contained in the master agreements.13 It is this ground of public policy which
would appear to militate most strongly against application of the credit support or
termination provisions.14 The central question is, therefore, as to the appropriate basis for
public policy in this area. It is submitted that the most appropriate policy is to respect the
market practice of controlling risks through standard contracts and to recognise the
impact these provisions have on lowering systemic risk in relation to financial derivatives
contracts.
11
Gaskell v. King (1809) 11 East. 165; Gibbons v. Harper (1831) 2 B. & Ad. 734.
Goldsoll v. Goldman [1914] 2 Ch. 603, [1915] 1 Ch. 192; Ronbar v. Green [1954] 1 W.L.R. 815; Scorer
v. Seymour Jones [1966] 1 W.L.R. 1419.
13
Alternatively, the issue arises whether any credit support documentation, being collateral to the void
contract, could be effective against the defaulting party. The doctrine of severance would suggest that any
collateral credit support documentation could be made effective against the counterparty.
14
Kuenigl v. Donnersmarck [1955] 1 Q.B. 515; Hyland v. Barker [1985] I.C.R. 861, 863.
12
The doctrine of severance might also apply with reference to the distinction between
executed and non-executed transactions. It could be submitted that, where the parties
have acted consensually, and without any other unjust factor such as fraud or undue
influence, there is no injustice in requiring the parties to observe their agreement.
A further issue arises where one type of derivative only is found to be inefficacious or
void. The question would arise whether a credit support document, such as an agreement
to provide collateral, in support of a range of derivative transactions, would be held to be
partly valid to the extent that it covered the valid transaction. The all-or-nothing approach
of the courts in the swaps cases does little to appreciate the habitual commercial usage of
the credit support structure across a range of transactions potentially in different
jurisdictions.
The correct approach would appear to be that the credit support document would
continue in full force and effect in relation to those transactions which have not been
declared to be void. That does not answer the question whether or not it should be
applicable even though the agreement to which it is collateral has been held to be void. It
is submitted that the credit support document should be upheld on the grounds that it
lowers the financial risk at large between the parties without impacting on third party
creditors who must have proceeded on the basis that such agreements were valid until
they were declared to be void by a court.
Contracts void ab initio
Contrary to the sentiments of the English courts in Islington, it is not an immutable rule at
English law that a contract void ab initio is necessarily completely inefficacious in any
event. Further to the availability of the doctrine of severance, it has been held, primarily
in the context of insurance and shipping contracts, that contracts void ab initio can
nevertheless be held to be valid to the extent of jurisdiction clauses and arbitration
clauses. In the case of FAI General Insurance v. Ocean Marine Mutual15 a contract of
reinsurance was held to have been void ab initio. The reinsurer sought to commence
proceedings in the New South Wales court while the reinsured sought to commence
proceedings in the English court. The purported contract of reinsurance had specified that
English courts were to have jurisdiction in the event of any dispute. The issue arose as to
the efficacy of such jurisdiction provision.
The court found that simply because a contract was held to have been void ab initio did
not necessarily preclude the efficacy of jurisdiction clauses and arbitration clauses. There
was nothing on the terms of the contract to suggest that the exclusive jurisdiction clause
should not apply. In deciding to exercise the jurisdiction of the English court, it was held
that the reinsurer should be held to its bargain. This decision was based on broad
principles of English commercial law as to the severability of terms of contracts
15
[1998] Lloyd’s Rep. I.R. 24.
otherwise held to have been void.16 Similarly, there is a general principle that the parties
should be held to their bargain in the first instance,17 which it is contended ought to
include the risk management provisions of a financial derivatives contract.
II.
Equity and suitability
There is a problem in isolating the line between law and regulation in the context of
financial transactions. Within the financial community itself the personnel who deal with
legal issues and those who deal with regulatory issues tend to be different. There is
usually a distinction between ‘legal’, ‘documentation’ and ‘compliance’ departments as a
result. The concept of ‘suitability’ is culled from notions of regulation and, more
specifically, whether or not the mixture of clients and products is a suitable one. It is
submitted that the approach of Equity to financial market contracts should import some
notions of suitability to the extent that they chime in with understood equitable principles.
For example, the benefits of enforcing standard market contracts to reduce the level of
systemic risk is considered below as fitting in with the understood doctrine of common
intention constructive trusts from the area of traditional family trusts of homes. As
observed earlier from the speech of Lord Browne-Wilkinson in Target Holdings there is a
need for a parallel understanding of equity in the context of commercial situations which
is different from principles of equity and trusts as traditionally understood.
The development of an equitable model for financial agreements
In considering commercial situations, the appropriate rules of equity should be centred
around a central principle: to enforce prudential risk management provisions of the
contract between the parties except where that would be contrary to some mandatory
principle of equity or contrary to public policy.
Proprietary remedies
The first issue is to be consider those situations in which an equitable remedy should be a
proprietary remedy. On the suitability approach such an award ought to be made where
the contractual agreement between the parties allocates title to the property transferred
under the transaction.18 As part of a contractual agreement, the law should recognise the
16
Mackender v. Feldia AG [1967] 2 Q.B. 590; Woolworths Ltd v. McMillan (Rogers J., February 29, 1988,
unreported; Harbour Assurance Co (UK) Ltd v. Kansa General International Insurance Co Ltd [1992] 1
Lloyd’s Rep. 81.
17
Huddart Parker Ltd v. The Ship “Mill Hill” (1950) 81 C.L.R. 502; Oceanic Sun Line Special Shipping
Co Inc v. Fay (1988) 165 C.L.R. 197; Akai PtyLtd v. Peoples Insurance Co Ltd (1995) 8 ANZ Ins. Cas.
161; The Eleftheria [1970] P. 94; The El Amria [1981] Lloyd’s Rep. 521; Citi-March Ltd v. Neptune Orient
Lines Ltd [1996] 1 W.L.R. 1367, [1996] 2 All E.R. 545; FAI v. Ocean Marine [1998] Lloyd’s Rep. I.R. 24.
18
This would not have happened in Islington because the contracts did not contain specific retention of title
provisions.
understanding between those parties as to the allocation of title in property. As an
extension of the constructive trust, it is inequitable for one party to represent by purported
written contract with a counterparty that the counterparty will acquire title in property,
only for that property to be lost and replaced only by a personal claim. It is submitted that
this can be achieved either by straightforward application of the principle set out by Lord
Browne-Wilkinson in Islington for an institutional constructive trust, by means of a
development of the remedial constructive trust canvassed by Lord Browne-Wilkinson or
by extension of common intention constructive trust and proprietary estoppel principles.
Equity understands the typical situations in which such a re-allocation or transfer of
proprietary rights ought not to be effected. For example, in the derivatives markets the
regulatory concern is frequently that inappropriate products are being sold to
inappropriate clients. As a result there is some unsuitability in the derivatives business. It
is contended that the equitable doctrine of undue influence is capable of dealing with
exactly such a situation. There might be a different issue where the parties are of unequal
bargaining strength as a result of their seller and retail-buyer status in respect of a
complex derivative product. As such it could be said that the product or service provided
by the stronger party was provided in a context where the buyer would normally rely on
the advice of the seller and there was some undue influence in the creation of that
product. Consequently, the correct analysis according to the suitability approach would
be to decide whether or not the buyer of the product had been unduly influenced into
purchasing property. As such that person ought to receive a proprietary remedy over
property passed to the seller under some undue influence.19
The role of equity after the acceptance of the doctrine of unjust enrichment by the House
of Lords in Lipkin Gorman v. Karpnale20 has led some commentators to include a test of
unjust enrichment as part of their statement of the availability of proprietary equitable
interests.21 Therefore, it is submitted that there is a requirement that Equity recognise the
role of the doctrine of unjust enrichment in the application of equitable doctrines. With
this in mind it is contended that, if a risk was allocated between the parties, where as a
result of some unjust factor, the either party was caused to be unjustly enriched by the
acquisition of some property of the plaintiff at the expense of the other party, Equity
should impose a proprietary equitable interest to restore that property to the plaintiff.22
Such an interest would be required to be a constructive trust, in the wake of Lord
Browne-Wilkinson’s leading speech in Islington on the unsuitability of resulting trusts to
achieve restitution. Therefore, where the seller of a derivative product seeks to rely upon
the efficacy of that product in circumstances where there had been some duress or
misrepresentation, it is contended that unjust enrichment ought to found a proprietary
claim in equity over property transferred as part of that transaction.
19
This should be compared with the torts of misrepresentation, etc., as considered below.
Lipkin Gorman v. Karpnale [1991] 2 AC 548, and also Woolwich Equitable Building Society v. IRC
(No.2) [1993] A.C. 573, [1992] 3 W.L.R. 366, [1992] 3 All E.R. 737.
21
See Hayton, Underhill and Hayton on the Law of Trusts and Trustees, (Butterworths, 1995).
22
Smith, ‘Tracing and Electronic Funds Transfer’, in Rose ed., Restitution and Banking Law (Oxford,
Mansfield Press, 1998), 120.
20
As considered above in The Structure of Financial Derivatives Products,23 there is a need
to draw a distinction between those derivatives which are cash-settled and those which
are physically-settled. The cash-settled products will, generally, not require security in
respect of any particular property. The usual mechanisms for credit support in cashsettled transactions are the provision of collateral or margin by deposit of a threshold
level of cash or securities in a specified account. However, many derivatives will require
delivery of a specific form of security, commodity or other asset to fulfil a further
financial obligation owed by the recipient. In such situations it would be desirable for the
contractual documentation to manifest such a commercial purpose - lamentably many of
the standard market documents do not provide for such opening recitals of intention. In
circumstances where a transaction is terminated, if rescission is the appropriate remedy
under a physically-settled transaction, where the traceable proceeds of the original
transfer remain in the hands of the recipient, it is submitted that an equitable proprietary
remedy would be appropriate to give effect to the intentions of the parties.
As considered below in greater detail, the further factual circumstance in which it is
contended that the award of a proprietary remedy would be appropriate is where the
allocation of proprietary rights would be where it accords with the common intention of
the parties. This common intention would be capable of support where it is set out in a
severable part of the agreement between the parties which remains lawful in se and which
is not contrary to public policy.
Personal claims
The House of Lords in Islington was unanimous in finding that there was no reason for
the award of a proprietary remedy in favour of the bank. As considered above, this did
not take account of the terms of the contracts entered into between the parties. However,
it is submitted that there will be a number of situations in which it would not be
appropriate to provide for proprietary remedies in the context of financial transactions. It
is not the intention of this book to suggest that parties ought to be awarded proprietary
rights on the basis that, ex post facto, the plaintiff would like a proprietary remedy.
Rather, it is important to isolate in commercial disputes the situations in which she ought
to be entitled to such a remedy. The following sections considers those situations in
which it is submitted that a remedy by means of equitable compensation or by imposition
of personal liability under constructive trust should be made available to a party where a
transaction is caused to be terminated.
In cases where a particular risk has not been allocated to either party under the terms of
their contract, where as a result of some unjust factor either party was caused to be
unjustly enriched at the expense of the other party. However, if a risk was assumed by
either party, that risk was a reckless risk for that party to have taken in that context,
personal liability to account for the loss suffered by that other party should be imposed in
line with the decision of the Privy Council in Royal Brunei Airlines v. Tan.24 In
23
24
Chapter 2.
Royal Brunei Airlines v. Tan [1995] 2 A.C. 378.
circumstances where the parties were of unequal bargaining strength, and the product or
service provided by the stronger party was not suitable for the purposes of the weaker
party in the context of that transaction, the stronger party should bear personal liability to
account to the other party.
It is suggested that in the case of both cash-settled and physically-settled transactions,
rescission is the appropriate equitable response. The nature of the liability to account
would be the payment necessary to reverse a cash-settled transaction including any
necessary costs associated with the loss of bargain. A similar calculation to reverse the
commercial effect of the transaction should be made where the risk taken, or the context
in which the risk was taken, contravened some principle of public policy or of statute or
of some other mandatory rule of law or equity.
Common intention constructive trusts
The common intention constructive trust is a creature of equity used with reference to the
allocation of rights in domestic homes. The development of this particular principle can
be traced to the work of Professor Hayton and to the speech of Lord Bridge in Lloyds
Bank v. Rosset.25 So it is to be conceded from the outset that the basis for the equitable
principle which is to be advanced for the resolution of disputes in commercial contracts is
founded on the law relating to domestic homes. Beyond an understanding of generic
equitable principles, this area does not appear to have been extended outside the specific
context of ‘trusts of land’. Indeed, it would appear that the rigid application of the
decision of the test for the generation of equitable interests in real property created by
House of Lords in Rosset.26
This section will set out the reason why there is a similarity of purpose and utility of the
common intention constructive trust in the contexts both of real property and commercial
contracts; then it will consider some of the conceptual weaknesses of that construct in
relation to real property, explaining why those deficiencies do not obtain in relation to
commercial contracts.
The common intention constructive trust aims to impose the office of trusteeship on a
person who seeks to use property in a manner which runs contrary to some agreement
between the parties as to the allocation of interests in that property or the manner in
which it was understood that that property was to be dealt with. In the context of the
family home this enables the court to isolate an agreement or arrangement between coowners as to the allocation of equitable interests in their home (or homes). Where such an
agreement, or course of conduct indicating an implied agreement, can be found, the court
will order that the property be dealt with in accordance with the existence of such
25
Lloyds Bank v. Rossett [1991] 1 A.C. 107; [1990] 1 All ER 1111, [1990] 2 WLR 867.
See for example the decision of the Court of Appeal in Midland Bank v. Cooke [1995] 4 All ER 562
(especially in the judgement of Waite LJ).
26
beneficial interests. Typically, under s.14 of the Trustees of Land etc. Act 1996,27 this
results in an order for sale of the property or an order that one or other party be entitled to
reside in the property with the children from such relationship. However, a party who has
not been identified as a legal owner of the property, can acquire proprietary rights in the
home by virtue of the ‘common intention’.
In the context of a commercial contract it is clear that there must be common intention as
to some parts of the inter-action of the parties. In a perfect world a contract would
evidence the entirety of the intentions of the parties in relation to their respective
obligations, credit support issues and rights in any property transferred between them.
Where there is no such agreement as to any of these questions, there could be no
constructive trust based on a common intention unless that could be implied from their
mutual conduct. Where there is an express agreement between the parties as to the legal
and/or equitable interest in property, that contract will be decisive as to that issue. The
problem is where the contract is explicit as to title in property and so forth but the
contract itself is unenforceable because it has been held to have been void ab initio.
The common intention constructive trust does not require that there have been anything
amounting to a binding contract to be imposed on the parties. In part this is because
ordinary people unversed in the niceties of the law relating to real property are not
expected to have observed the formalities of creating contracts in respect of land.28
Therefore, this thinking need not be extended to commercial parties who have failed to
reached agreement in any contractual form as to their respective proprietary and other
rights. However, it is submitted, that where contractual parties have formed detailed
contracts, borne out of a standard market form, and it is only the technicality of the ultra
vires rule which has led to performance of their contract being unenforceable either at
law or equity, collateral issues of credit support and proprietary rights in property ought
to be governed in equity in accordance with their common intention.
It is submitted that the contracting parties can have no objection to being bound by the
terms of their agreement. In situations where the formation of the agreement is said to be
founded on some unjust factor, misrepresentation or undue influence, then there would be
no valid common intention to form an agreement such that the constructive trust could
not be enforced. Alternatively, it cannot be said that there is any hardship to creditors of
one of the contracting parties. In the event that the party is insolvent, the creditors receive
a windfall in the event that the contract is found to be unenforceable. The House of Lords
in Islington were unanimous in their desire to protect ordinary creditors of an insolvent
party in a bankruptcy. However, it is contended that there is no reason to protect ordinary
creditors beyond ensuring that one category of unsecured creditors does not gain an
unjustified advantage29 over the other unsecured creditors. There is no reason, however,
why ordinary creditors should obtain preference over parties who have sought to protect
themselves by retaining some proprietary interest. The pre-deliction for the protection of
27
Formerly s.30 of the Law of Property Act 1925.
For example, the requirement under s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 that
contracts in relation to land must be in writing.
29
Beyond what is preserved by statute.
28
those who have not acquired proprietary protection for themselves simply fails to
recognise that it is the market economy which is at fault in creating inequalities of
bargaining power.30 The weakness of the Islington decision is that it precludes the
contracting parties from seeking to allocate responsibility and proprietary rights. The
strength of the model based on the common intention constructive trust is that it observes
the freedom of the parties to contract and thus restricts the scope for systemic risk as set
out above.
The criticism of the common intention constructive trust has been based primarily on its
reliance on an implied agreement where no such agreement has never existed. The
English concepts of Equity have a use for legal fictions. For example, the mutual conduct
common intention constructive trust is simply self-contradictory. Where there is no
express agreement of any kind between the parties, the court has given itself the power to
assume from the behaviour of the parties that they would have reached a particular
agreement had they been appraised of the legal context. Therefore, they are treated as
having created an agreement where there was none. A legal fiction. There are other
complaints which are specific to the context of the family home and purchase trusts: for
example the necessity that there have been some direct contribution to the mortgage
repayments or purchase price31 rather than any more general contribution to familial
expenses.32
Proprietary estoppel and the remedial constructive trust
The doctrine of proprietary estoppel offers a substantive claim 33 which some
commentators have considered to be closer to the remedial model constructive trust used
in North American jurisdictions than the English institutional constructive trust.34 It is
useful therefore to consider the similarities and differences between the two doctrines to
understand better the model of common intention constructive trust which the suitability
approach would apply to commercial and financial market transactions.
There is a basic, conceptual distinction to be made between the common intention
constructive trust and the doctrine of proprietary estoppel. The common intention
constructive trust operates on the basis of a bi-lateral understanding between two cohabitees as to the nature and allocation of the interests of each in the property which they
co-inhabit.35 On the other hand, the doctrine of proprietary estoppel operates on the
unilateral conduct of one party who represents to the other party that that other will
30
The writer has argued elsewhere that it is the role of government to intervene in situations where it is
considered that such inequalities of bargaining power are insupportable: see The Law on Financial
Derivatives (Sweet & Maxwell, 1996), p.199 et seq.
31
Lloyds Bank v. Rosset [1990] 1 All E.R. 1111, 1119, per Lord Bridge.
32
Burns v. Burns [1984] Ch. 317.
33
In contradistinction to the shield of promissory estoppel: Hughes v. Metropolitan Railway (1877) 2 App.
Cas. 439; Central London Property Trust Ltd. v. High Trees House Ltd. [1947] K.B. 130.
34
Hayton (1993) L.Q.R. 485.
35
Gissing v. Gissing [1971] A.C. 886; Midland Bank v. Dobson [1986] 1 F.L.R. 171.
acquire some interest in real property, in reliance upon which that other acts to her
detriment.36 The attitudinal differences between the two doctrines37 is exemplified by a
need to plead each in a distinct way rather than to rely on a common pleading to establish
either doctrine inter-changeably. Indeed, the test for proprietary estoppel on the ‘three
stage basis’38 set out in cases like Re Basham39 is somewhat more certain than the
operation of the general constructive trust set out by Lord Browne-Wilkinson in Islington
as discussed above.
The basis of the doctrine of proprietary estoppel is not entirely clear. There appear to be a
number of theoretical underpinnings arising from the cases which allow us to choose
between:- providing a cause of action in equity where the common law will not allow
one; preventing the legal owner from relying on legal rights in circumstances where that
would be contrary to conscience; simply “raising an equity”; perfecting imperfect gifts
where the representation is read as an intention to make a gift; and a simple restitutionary
response based on preventing unconscionable conduct.
The common, modern form of proprietary estoppel has three basic requirements:
representation, reliance, and detriment. The term ‘representation’ is most commonly
found in the cases although some writers prefer to use the term “assurance”. 40 This
representation or assurance can be an implied representation.41 While some cases have
identified unconscionable conduct as being at the heart of the doctrine, the representation
itself need not be based on any unconscionable conduct.42 As to the specificity of the
rights to be acquired and the precision of the property, it appears from decided caselaw
that a promise as vague as the provision of a “roof over your head” is insufficient.
Therefore there is a need to be precise despite the largesse of the legal fiction at the heart
of the allocation of rights in homes by the courts.43 The representation can be manifested
by words or deeds, as illustrated by Pascoe v. Turner44 or even by silent acquiescence of
the representor with conduct of the representee where the former knows that the latter
understands that she will acquire an equitable interest in property by virtue of her
conduct.45
Reliance is generally taken to be a matter of evidence and may be assumed (on an
evidentiary basis) where there has been a representation.46 The further question is what
form of conduct will constitute ‘detriment’. There are two possibilities: first, expenditure
of money on improvements, or second some more general personal disadvantage. At one
36
Pascoe v. Turner [1979] 2 All E.R. 945; Re Basham [1986] 1 W.L.R. 1498; Wayling v. Jones (1995) P.
& C.R. 170.
37
See on this Hayton, ‘Equitable Rights of Cohabitees’ in Equity and Contemporary Legal Developments,
ed. Goldstein (Jerusalem, 1992).
38
As opposed to the ‘five probanda’ test set out in Coombes v. Smith [1986] 1 W.L.R. 808.
39
[1986] 1 W.L.R. 1498.
40
See Pawlowski, The Doctrine of Proprietary Estoppel (Sweet & Maxwell, 1996), 22 et seq.
41
Crabb v. Arun DC [1976] Ch. 179, per Lord Denning.
42
Lim v. Ang [1992] 1 W.L.R. 113.
43
Coombes v. Smith [1986] 1 W.L.R. 808.
44
[1979] 2 All E.R. 945.
45
Ramsden v. Dyson (1866) L.R. 1 HL 129.
46
Lim v. Ang [1992] 1 W.L.R. 113, Grant v. Edwards [1986] Ch. 638.
level it is said that any form of detriment, including personal disadvantage ought to be
included.47 However, the contrary view is that detriment must be directed at the purchase
of the property or at the acquisition of rights directly in the property. 48 The scope of the
available remedies is orientated around the nature of the loss which is to be compensated:
whether that is simply the reversal of the detriment or compensation for the expectation
loss. The general approach of English law has been to deal with the expectation of the
party who has suffered some detriment.49 Those jurisdictions which have based their test
on ‘unconscionable conduct’ have identified compensation valued by reference to
“detriment loss” as the better remedy to deal with that conduct. 50 What is clearer is that
the extent of the remedy will be that necessary to do the minimum equity necessary.51
This has led to the award of the fee simple of one property,52 whereas at the other end of
the scale the Commonwealth jurisdictions have begun to develop the use of equitable
compensation in some circumstances.53
As such, the doctrine of proprietary estoppel has established its own specific
jurisprudence. Its own core terms have been developed, in English law at any rate, in a
specific context outwith the understanding of the constructive trust or the common
intention constructive trust. The speech of Lord Bridge in Rosset54 fanned the flames of
the debate as to the need or desirability of keeping the common intention constructive
trust and the doctrine of proprietary estoppel distinct. Lord Bridge frequently used the
expression ‘constructive trust or proprietary estoppel’ as a composite which implied that
the two doctrines should be considered to be synonymous. Many commentators have
applauded the possibility of using the flexibility of the doctrine of proprietary estoppel to
create a remedial constructive trust55 for family home situations.56 Other commentators
and authorities have argued that the two doctrines should be kept distinct on the basis of
their separate conceptual foundations.57
In the context of commercial agreements the substantive claim based on proprietary
estoppel is not, it is submitted, a suitable foundation on which Equity should build. The
discretion that is given to the courts, which Hayton considers to be such a boon in the
47
Browne-Wilkinson LJ in Grant v. Edwards [1986] Ch. 638. See also Re Basham [1986] 1 W.L.R. 1498.
Jonathan Parker QC in Coombes v. Smith [1986] 1 W.L.R. 808.
49
Pascoe v. Turner [1979] 2 All E.R. 945, Greasley v. Cooke [1980] 1 W.L.R. 1306, Re Basham [1986] 1
W.L.R. 1498.
50
Commonwealth of Australia v. Verwayen (1990) 64 A.J.L.R. 540; Walton Stores v. Maher (1988) 62
A.J.L.R. 110, 164 C.L.R. 387.
51
Crabb v. Arun D.C. [1976] Ch. 179; Pascoe v. Turner [1979] 2 All E.R. 945.
52
Pascoe v. Turner [1979] 2 All E.R. 945.
53
Palachik v. Kiss (1983) 146 D.L.R. (3rd) 385; Novick Estate v. Lachuk Estate (1989) 58 D.L.R. (4th) 185;
MacDonald v. MacKenzie (1990) 60 D.L.R. (4th) 476; Gillies v. Keogh [1989] 2 N.Z.L.R. 327.
54
Lloyds Bank v. Rossett [1991] 1 A.C. 107; [1990] 1 All ER 1111, [1990] 2 WLR 867.
55
This description of the manner of constructive trust imposed as a result of a claim based on proprietary
estoppel was adopted by the Court of Appeal in Metall und Rohstoff AG v. Donaldson Lufkin & Jenrette
Inc. [1990] 1 Q.B. 391, 479; Lac Minerals Ltd. v. International Corona Resources Ltd. (1989) 61 D.L.R.
(4th) 14, esp. 51 where the court refers to the prospective remedy imposed once the claim had been made
out.
56
See Hayton [1993] L.Q.R. 485.
57
Nourse LJ in Stokes v. Anderson [1991] 1 F.L.R. 391; Ferguson (1993) 109 L.Q.R. 114; Oakley
Constructive Trusts (Sweet & Maxwell, 1997) 64-84 infra..
48
area of family home trusts,58 is too great a discretion in situations where the parties seek
remedies in connection with detailed commercial undertakings. It is better to enforce in
equity their common intention as expressed by their contracts so that commercial
certainty is upheld.
The availability of equitable proprietary remedies
Lord Browne-Wilkinson held that there could be no retention of any rights in the deep
discount payment by the bank because both parties intended that there be an outright
transfer of that sum to the authority. The argument for the imposition of a resulting trust
would be that there was no intention to make a voluntary and outright transfer of the
property in circumstances where the contract is found to be void ab initio. 59 The radical
restitutionary approach, effecting restitution as a remedy for unjust enrichment by
subtraction of that enrichment, was considered expressly by their lordships. For the most
part the radical approach fairs badly before the House of Lords. Birks suggests that the
role of the resulting trust is primarily restitutionary and that this form of resulting trust
should be imposed in cases of mistaken payment or failure of consideration to reverse
unjust enrichment.60 However, it is submitted that these suggestions fall into the trap
which Lord Browne-Wilkinson has identified: any intention to create a resulting trust is
to be rebutted by the intention at the time of the transfer to make an outright transfer. As
his lordship held, there is a difficulty with establishing the role of the resulting trustee
from the moment of receipt of the property at a time when there was no knowledge of the
trusteeship.
The better approach, not addressed expressly by any of the courts in Islington, would be
to extend the common intention constructive trust to commercial situations. Whereas this
idea has been restricted to family home trusts, among the competing claims to resulting
trusts, unjust enrichment and proprietary estoppel in that context, it is an idea which
would appear to sit most comfortably in commercial situations. The weakness of the
common intention constructive trust, as with all rules governing trusts of co-owned
domestic land, is that it rests on a fiction. The fiction is that there has been some
agreement between the parties, or some conduct tantamount to an agreement, which
ought to form an institutional constructive trust (that is, one founded on the application of
principle rather than being a discretionary remedy provided by the court). As a result of
this fiction, a constructive trust is imposed to set out the parties’ entitlements to the
equitable interest in the land. This form of trust is imposed particularly where it is
considered inequitable not to do so.
In the context of commercial contracts there is an agreement between the parties. In
seeking to establish the equitable title to property passed under a void contract, it is
58
Hayton [1990] Conv. 370; [1993] L.Q.R. 485.
In this regard, see Worthington, Proprietary Interests in Commercial Transactions (Oxford, 1996), xi.
60
See Birks, ‘Restitution and Resulting trusts ‘ in S. Goldstein, (ed.), Equity and Contemporary Legal
Problems (Jerusalem, 1992), 335.
59
submitted that the court ought to consider the common intention formed between the
parties as to the title to that property. Given Lord Browne-Wilkinson’s determination to
recognise the intentions of the parties in refuting the possibility of a resulting trust, it
would appear appropriate to recognise those intentions when considering the possibility
of a constructive trust. This would also appear to address the concerns of Lord Goff and
Lord Woolf that justice must be seen to be done and that the confidence of commercial
people in the utility of English law must be promoted.
Lord Browne-Wilkinson rejected the possibility of a proprietary interest based on
constructive trust on the basis that the English model of constructive trust is institutional
in nature, operating in response to the trustee’s knowledge of some factor which ought to
impact on his conscience sufficiently to warrant the imposition of such a constructive
trust. On the facts of Islington it was found that the authority did not have knowledge of
the status of the contract until it was declared to be ultra vires by the courts.
However, at that point there is another impact on the authority’s conscience: it had
already agreed with the bank that it would be bound by the termination provisions in its
swap agreement (including calculation of interest and netting of transactions). It is
submitted that this prior agreement ought to be sufficient to cause the authority to be
bound by those terms of the swap contract with regard to the amount owed under the
agreement. Similarly, such common intention as to termination and proprietary rights in
assets transferred by arm’s length market participants should be enforced by equity
through the common intention constructive trust. In the event, the weakness of the market
standard contracts for over-the-counter derivatives is that they do not cater sufficiently
for retention of title in property. There is clearly an issue for ISDA and for the BBA to redraw its standard contracts to take account of this deficiency in counterparty protection.
This is particularly so in the case of physically-settled transactions and transactions
annexed to deep discount payments where title to the specific property transferred is of
greater importance than receipt of its cash equivalent in a designated currency.
The issue which arises is: how can a void contract be given effect to in part? More
specifically, if the swap contract is held to have been void ab initio, how can the
termination provisions or retention of title clauses be effective still. There are two
arguments on this basis. First, it is clear from Re Goldcorp61 that if a contract is avoided
by election of the parties, and property transferred under that contract can still be
identified, a constructive trust will be imposed over that identifiable property. Therefore,
there is a difference between the enforceability of a voidable contract and a void contract
as a result of Islington.62
Second, it is submitted that it would be possible to sever the termination provisions from
the economic provisions of the swap contract, as considered above. The risk management
features of standard market financial documents introduce greater certainty and lessen the
cash amounts required to be paid between market participants. Therefore, the identified
61
[1995] A.C. 74; also Worthington , Proprietary Interests in Commercial Transactions (Oxford, 1996).
It is accepted that in Islington the property was no longer identifiable because the bank account into
which the property had been paid had subsequently been run overdrawn on a number of occasions.
62
policy of precluding the parties from entering into further damaging transactions does not
apply in the context of a provision, such as a netting clause on termination, which reduces
the net amount of the parties’ exposure to one another. The validity of an instrument need
not be compromised because some element of it is held to unenforceable.63
Undue influence
The issue of ‘suitability’ clearly imports notions of unconscionable behaviour on the part
of the seller of financial derivatives. As has been considered, the relationship of banker
and client will not necessarily import a fiduciary relationship, although there are a
number of situations in which a fiduciary relationship will arise: where the bank induces
business by agreeing to become financial advisor,64 where the bank advises a customer to
enter into a transaction,65 and where the advises a person to enter into a transaction which
is to their financial disadvantage without ensuring that they have taken independent
advice.66
In the case of derivatives, liability potentially arises for advice given to a client with
respect to selling financial derivatives. Where the client is reliant on the expertise of the
advisor, there is a liability for the advisor not to exert undue influence over that client by
selling them products which are to their financial detriment in situations where they have
reposed trust in the advisor. The application of this principle in the recent mortgage cases
has revolved around the relationship of ‘special tenderness’ between husband and wife in
securing borrowings over the family home. In those circumstances, the bank has been
held to have a responsibility to ensure that the spouse who is acting to their financial
disadvantage (as surety or co-mortgagor) must have received independent advice.
There is a different relationship between parties in the OTC derivatives market. The
clients are sophisticated corporate entities or financial institutions, rather than ordinary
members of the public.67 Therefore, the clients are expected to be able to procure their
own legal and accountancy advice. The advice given by the seller of the derivative is
likely to be the only advice received by the buyer; either because the seller is the ‘house
bank’ to the buyer or is a specialist in the particular product sold. In either case, the client
can properly rely on the advice that is given to them.
There is an overlap here with the tort of misstatement and the principle in Hedley Byrne
v. Heller.68 However, tortious remedies will not extend claims in rem where the plaintiff
63
Gaskell v. King (1809) 11 East. 165; Gibbons v. Harper (1831) 2 B. & Ad. 734.
Woods v. Martins Bank Ltd. [1959] 1 Q.B. 55; Standard Investments Ltd. v. Canadian Imperial Bank of
Commerce (1985) 22 D.L.R. (4th) 410.
65
Lloyds Bank v. Bundy [1975] Q.B. 326; Royal Bank of Canada v. Hinds (1978) 88 D.L.R. (3rd) 428.
66
National Westminster Bank plc v. Morgan [1985] A.C. 686; Barclay’s Bank v. O’Brien [1993] 3 W.L.R.
786; CIBC v. Pitt [1993] 3 W.L.R. 786.
67
With the exception of some occasional retail business done with the private clients of investment banks.
68
Hedley Byrne v. Heller [1964] A.C. 465.
64
is seeking to recovery specific property provided as part of the transaction. This desire for
a proprietary claim may arise in respect of a physically-settled transaction or a transaction
in which securities are provided as a premium or fixed rate payment, or where compound
interest is sought in respect of cash-settled transactions.
The finding of undue influence would provide a further unjust factor to found a claim in
restitution. Where the seller profits from some unconscionable pressure on the client,
those profits would constitute an unjust enrichment at the expense of the buyer,
remediable by some restitutionary response. The appropriate response to remedy the
enrichment would be a proprietary claim to recover the full amount of gain made and the
full, potential loss to the buyer connected with the seller’s use of the property.
It is submitted that another possible claim under the umbrella of suitability would arise
where there was some undue influence on this model. The appropriate form of remedy
would be the imposition of a constructive trust in line with the unconscionable nature of
the transaction. Whether there is sufficient knowledge in the seller may not be apparent
from the assertion as to whether or not the product sold was considered to be suitable at
the time when it was sold. It is possible that the creation of a product which negligently
exposed the buyer to an unforeseen risk, would be an unsuitable product. Where the seller
had advised the use of that structure and had prepared a pricing model and a risk model in
connection with the transaction, it is submitted that that would be sufficient to constitute
undue influence in circumstances where the client would naturally rely on the advice
given to it by the seller.
Enforceability of illegal contracts
The local authority swaps cases revolve around the core finding of ultra vires in Hazell,
but the issue may arise in other contexts where contracts are found to be void or
unenforceable, such as the supervening illegality of the contract.69 The long-established
principles of equity in this context were re-drawn by the House of Lords in the case of
Tinsley v. Milligan.70 The appeal concerned a lesbian couple who had concocted a
fraudulent scheme to ensure that one of them would receive state benefits to which she
would not otherwise have been entitled. M and T used the house as a lodging house
which they ran as a joint business venture. This business provided the bulk of both
parties’ income. The property was registered in the sole name of T although both parties
accepted that the property was owned jointly in equity. The purpose for the registration in
T’s sole name was to enable M to claim state benefits with T’s full knowledge and assent.
The relationship broke down and T moved out. T claimed absolute title to the house. M
claimed that the house was held on trust for the parties in equal shares. T argued that M
would be required to rely on her illegal conduct to establish this claim and that equity
69
The emerging regulation of derivatives in the global context does mean that regulation, criminalisation
and prohibition of are factors which emerge after market counterparties have begun to contract those
derivatives products.
70
[1993] 3 All E.R. 65, [1993] 3 W.L.R. 36.
should not therefore operate to give M the benefits of her wrongdoing. The statement
made by Lord Browne-Wilkinson in that case indicated that contracts are capable of
being enforceable in part despite being intrinsically unlawful.
Lord Browne-Wilkinson held that:‘(1) Property in chattels and land can pass under a contract which is illegal and
therefore would have been unenforceable as a contract.
(2) A plaintiff can at law enforce property rights so acquired provided that he does
not need to rely on the illegal contract for any purpose other than providing the
basis of his claim to a property right.
(3) It is irrelevant that the illegality of the underlying agreement was either
pleaded or emerged in evidence: if the plaintiff has acquired legal title under the
illegal contract that is enough.’
He considered the long-standing principle of Lord Eldon in Muckleston v. Brown71 that in
cases where the plaintiff seeks to rely on illegality to establish a trust, the proper response
is to say ‘Let the estate lie, where it falls’ with the owner at common law rather than
holding it on resulting trust. However, his lordship found that the earlier cases also
showed that the plaintiff ought to be entitled to rely on a resulting trust where she did not
have to rely on her illegality to prove it. Relying on principles of trusts of homes set out
in Gissing v. Gissing72 and Lloyds Bank v. Rosset,73 M was able to argue that she had
acquired an equitable interest in the property. The illegality was raised by T in seeking to
rebut M’s claim. M did not have to rely on her own illegality because she was entitled to
an equitable share in the property in any event.
Lord Browne-Wilkinson does describe the cases on trusts of homes as establishing the
‘creation of such an equitable interest does not depend upon a contractual obligation but
on a common intention acted upon by the parties to their detriment’. The form of trust
which his lordship appears to have in mind is a common intention constructive trust
rather than a resulting trust as normally understood. It is submitted that the appropriate
form of trust on the facts was a purchase price resulting trust arising from M’s
contribution to the acquisition of the property. To return to the earlier discussion of the
nature of resulting trusts, it does appear that his lordship is seeking to develop a resulting
trust based on ‘the common intention of the parties’ rather than one which, strictu sensu,
gives effect to the intention of the settlor. The whole drift of the law on resulting trust is
therefore moving towards the establishment of remedial and discretionary principles
rather than straightforward operation of law. On extending this thinking, it is not clear
why the common intention of the parties evidenced by their ultra vires contract, cannot be
effected to the extent that it is not ultra vires. In accordance with the doctrine of
severance, as considered above, there appear to be equitable grounds for giving partial
effect to contracts which are unenforceable in toto.
71
(1801) 6 Ves. 52, 68-69.
[1971] A.C. 886.
73
[1991] 1 A.C. 107; [1990] 1 All ER 1111, [1990] 2 WLR 867.
72
The dissenting speech of Lord Goff in Tinsley cites a number of authorities including
Tinker v. Tinker74 and Re Emery75 as establishing the proposition that equity will not
assist someone who transfer property to another in furtherance of a fraudulent or illegal
design to establish an interest in the property disposed of. This approach is founded
primarily on the ancient equitable maxim that he who comes to equity must come with
clean hands and the fear that an extension of principle propounded by Lord BrowneWilkinson would ‘open the door to far more unmeritorious cases’. While there is a moral
attraction to this approach, it does not deal with the fundamental property law issue ‘who
else can assert title to the property?’.
Conclusion
In considering commercial situations, the appropriate rules of equity should be a remedy
by means of an equitable proprietary remedy should be made available to a party where
the contractual agreement between the parties allocates title to the property transferred
under the transaction, or the award of a proprietary remedy would accord with the
common intention of the parties set out in agreement between the parties. It is similarly
arguable that such a remedy ought to be available where there was some undue influence
in the creation of the financial product, or either party was caused to be unjustly enriched
at the expense of the other party, or where rescission is the appropriate remedy under a
physically-settled transaction.
It is suggested that the usual defences of change of position and passing on would still
obtain. Similarly, public policy would constitute an exception in such circumstances. A
remedy by means of equitable compensation or by imposition of personal liability under
constructive trust should be made available in cases of reckless risk-taking; or where the
product was unsuitable; or if rescission is the appropriate remedy under a cash-settled
transaction76; or if the risk taken, or the context in which the risk was taken, contravened
some principle of public policy or of statute or of some other mandatory rule of law or
equity. The courts’ failure to enforce the credit enhancement and risk allocation
provisions of the contracts and standard form agreements between the commercial parties
to the swaps contracts, produces inequitable results between those parties, circumscribes
the efficacy of English law in the context of financial agreements, and introduces further
risk to financial markets by rendering otiose the terms of those standard form agreements.
The use of standard market contracts, particularly in the area of financial derivatives,
sought to remove uncertainty and to control systemic risk by standardising the terms of
over-the-counter agreements. Among these terms are provisions for the termination of
contracts in a manner which reduces systemic risk while also reducing the immediate
financial pressure on the parties to a contract on the happening of a termination event.
The English courts have chosen to consider these contracts to be unenforceable. As a
74
[1970] P. 136, [1970] 1 All E.R. 540.
[1959] Ch. 410.
76
Absent any remedy identified as a proprietary remedy above.
75
result, the markets’ attempts to introduce effective, consensual, ad hoc regulation of the
derivatives markets have been rendered ineffective.
What is not supportable is the dismay in the commercial community outside the UK
which relies on English law. Lord Woolf referred to the need for a ‘modern test’ in
financial transactions based on foreseeability of loss.77 As Lord Browne-Wilkinson found
in Target Holdings78 there is a need to break from the application of traditional rules of
Equity to commercial situations and consider the commercial context for equity. Lord
Nicholls has accepted the need to recognise inappropriate risk-taking by a fiduciary as a
ground for a claim in equity.79 In the context of financial contracts, equity must accept
the need to account for risk and suitability of product. As a corollary to this, it must
enforce the common intention of the parties as to the termination of financial contracts.
III.
Restitutionary claims based on suitability
As considered above, there are cross-overs between the appropriate use of radical
restitutionary techniques to reverse unjust enrichment and well-established equitable
responses in situations where commercial transactions are terminated before their
ordinary expiry. The swaps cases proceeded on the basis of claims both in restitution and
in equity. The following outline of the suitability approach aims to consider those
problems set out immediately above but from the stand-point of the restitution lawyer.
Restitution model
It is submitted that restitution by means of a personal remedy or by means of equitable
compensation should be made available to a party where a transaction is caused to be
terminated as a result of some event which occurred outwith the risks allocated expressly
by the parties as part of their transacting, where the non-allocation of that risk can be
identified as being the fault of one contracting party in the following circumstances.
Restitution of unjust enrichment ought to be ordered where a risk was not allocated
between the parties by means of their contract and, as a result of some unjust factor,
either party was caused to be unjustly enriched at the expense of the other party.
Alternatively, where a risk was taken by the defaulting party, that risk was a reckless risk
for that defaulting party to have taken in that context, a personal claim for restitution
should be ordered.
Two further situations in which a personal claim in restitution should be ordered where
the parties were of unequal bargaining strength, the product or service provided by the
Islington [1996] A.C. 669, [1996] 2 All E.R. 961, 1016; citing, with approval, Mann, ‘On Interest,
Compound Interest and Damages’ (1985) 101 L.Q.R. 30.
78
[1996] 1 A.C. 421.
79
Royal Brunei Airlines v. Tan [1995] 2 A.C. 378.
77
stronger party was not suitable for the contractually-identified purposes of the weaker
party in the context of that transaction; or if the risk taken, or the context in which the
risk was taken, contravened some principle of public policy or of statute or of some other
mandatory rule of law or equity.
The following sections consider aspects of the laws of restitution, contract and principles
of equity which were not considered in the swaps cases but which, it is submitted, would
be of potential importance in financial derivatives litigation in future.
Mispredictions
The business of financial derivatives revolves around predictions as to future market
movements. In considering the suitability of products, and the potentially available
remedies, a further question arises as to the more general liability for ‘mispredictions’.
This issue can arise in a number of guises. At one level it concerns the availability of torts
of misrepresentation and misstatement. At a second level it concerns issue of the
enforceability of contractual liabilities based on misrepresentation. The third is the area
of the possibility of restitution in situations where there has been a misprediction which
would lead to an unjust enrichment or some actionable claim for a restitutionary
response. The fourth category would arise out of estoppel. There is not the space here to
consider the scope of the torts or strictly contractual categories.
The restitutionary issue is perhaps interesting. A misprediction in this area can be
described as a misjudgement as to what will happen in the future. The availability of a
restitutionary category of misprediction is illustrated by Birks by reference to the case of
Barder v. Caluori80 where a wife killed her children and herself by destroying the home
which was to be passed to her former husband as part of their divorce settlement. As part
of the settlement, an amount had been set for the value of the property. The question
arose whether there was a remedy based on restitution available for misprediction of the
value and condition of property in these circumstances.
Birks’ general view is based on the principle that a claim for restitution cannot be
founded on a misprediction. However, he refines the general principle such that it applies
strictly in cases of mistake.81 Where the misprediction arises in the situation where an
advisor specifies the circumstances in which it is anticipated that certain events will take
place and Birks contends that an action based on failure of consideration is more likely
but that the claim should be founded on failure of basis.82 As Birks provides, this
restriction is important ‘Otherwise it would be difficult to explain to anyone why
restitution should not always follow when any risk turns out badly’.83
80
[1988] A.C. 20.
Birks, Introduction to the Law of Restitution, (Oxford, 1989), 451.
82
Birks, Introduction to the Law of Restitution, (Oxford, 1989), 219.
83
Birks, Introduction to the Law of Restitution, (Oxford, 1989), 451.
81
In the example of Barder, Birks considers that the basis of the transaction relating to the
house within the context of the divorce settlement was built on the condition of the house.
It is difficult why, in principle, this approach should differ from advice given by a
financial institution with reference to the utility of a derivative product. The uncertainty
that forms the basis for the transaction is the movement of rates creating a risk which the
purchaser seeks to manage. The claim in restitution would be based on the understanding
of the risks which was communicated between the parties in setting up the transaction.
There are two potential categories of issue: resultant loss caused by unanticipated
movements in market rates (failure of model) and loss caused by a reckless level of risk
being taken by the buyer on the advice of the seller (suitability failure).84
In the context of ‘model failure’, the allocation of risks lies with the advisor in seeking to
match market volatility with the forecasts and assessments set out in the pricing model.
Failure to anticipate all of the resultant movements may stem from negligence and
thereby be actionable in tort. The issue would arise as to the foreseeability of the loss
actually suffered. Alternatively, the buyer could seek restitution on the basis of a failure
of basis: that is, the perpetuation of anticipated market conditions. In reference to options
on equity markets, for example, it would be advantageous to the commercial parties to
specify a maximum volatility which they anticipate in the market, such that excess
volatility (outside their expectations or common intentions) would be discounted. It is
submitted that volatility outwith those boundaries would give rise to a claim founded on
failure of basis.
The claim based on ‘suitability failure’ would arise where the risk which the buyer sought
to manage was not met by the risk inherent in the product bought. For example, the use of
an interest rate swap which did not pay an interest rate to the buyer equivalent to the size
of risk inherent in its existing debt portfolio (a rate equal to x), but rather one which
contained an element of speculation (thus specifying a rate equal to x+ y). The element
that equalled y would be unnecessary for the purposes of debt management. The factor to
be proved by the buyer claiming suitability failure would be that the element y constituted
an unsuitable addition of risk which went beyond the basis upon which the transaction
was created. It may be that the element y arises from market disruption which the parties
had not foreseen but which was not covered by the contract. Alternatively, y might be an
element which was knowingly added to the transaction but which constituted an
unacceptable increase in the risk incumbent on the buyer.85
Restitution on a ground similar to this was illustrated in Muschinski v. Dodds.’86 That
appeal concerned a joint venture between a man and a woman to build a house on a plot
of land. The woman was to provide the money for the purchase. The man was to provide
84
At this level there is a potential claim, as considered above with reference to reckless risk-taking.
It was this latter, factual category which founded Proctor and Gamble’s claim against Bankers Trust in
relation to a claim for a loss of approximately US$160m caused by the selling of ‘high octane swaps’ for
the corporate party’s debt management which had an in-built exposure to speculative movements in the
underlying markets. The corporate party brought the action on the basis of the bank’s allegedly negligent
advice in selling the product without recognising its unsuitability both for the purpose and the particular
buyer.
86
(1986) 60 A.L.J.R. 55.
85
some value by dint of his work on the property. He would also put forward some money
to the project when his divorce was settled. The venture failed when planning permission
for construction on the site was refused. The ensuing strain brought an end to the joint
venturers’ personal relationship.
The majority saw the case as one of failure of basis. The dissenting judges (Brennan and
Dawson JJ.) considered the case to be one of constructive trust in which property should
be distributed according to the agreed shares between the parties. The former approach is
based on the restitutionary response to the change of anticipated circumstances. The latter
approach mirrors the English courts’ development of common intention constructive
trusts, considered below.
On failure of basis, the High Court of Australia in Muschinski v. Dodds
that:-
87
Deane J. held
‘The circumstances giving rise to the operation of the principle were broadly
identified by Lord Cairns, L.C., speaking for the Court of Appeal in Chancery, in
Atwood v. Maude88 : where “the case is one in which, using the words of Lord
Cottenham in Hirst v. Tolson 89 a payment has been made by anticipation of
something afterwards to be enjoyed [and] where … circumstances arise so that the
future enjoyment is denied.”90 Those circumstances can be more precisely defined
by saying that the principle operates in a case where the substratum of a joint
relationship or endeavour is removed without attributable blame and where the
benefit of money or other property contributed by one party on the basis and for
the purposes of the relationship or endeavour would otherwise be enjoyed by the
other party in the circumstances on which it was not specifically intended or
specially provided that the other party should enjoy it. The content of the principle
is that, in such a case, equity will not permit that other party to assert or retain the
benefit of the relevant property to the extent that it would be unconscionable for
him to do so.’91
It is interesting to note that the principle is stated to be without attributable blame,
whereas its application in the financial context is as likely to be in cases where the
contention is based on the fault of the seller rather than redressing the impact on the
buyer.
However, where the financial institution realises a substantial profit under the transaction,
by analogy that profit would be restored to the buyer where it would be unconscionable
to retain it. In accordance with the discussion [above, suitability as unjust factor], it is
submitted that the better ground for this approach in commercial cases would be where
87
(1986) 60 A.L.J.R. 55, 67.
(1868) 3 Ch. App. 369, 375.
89
(1850) 2 Mac. & G. 134; 42 E.R. 52.
90
In Atwood the court allowed an order for repayment of a proportionate part of premium where the
plaintiff had paid towards the establishment of a partnership which was then dissolved without the fault of
either partner.
91
(1986) 60 A.L.J.R. 55, 67.
88
the product created by the seller is unsuitable for the purpose desired by the buyer and
communicated to the seller. It is on this basis that unsuitability of product, extended in
circumstances where there is a failure of basis, should give rise to a restitutionary
response.
There is no proprietary claim against a dishonest assistant; i.e. one who does not receive
trust property.92 Therefore, a personal liability to account as a constructive trustee would
attach to a financial institution, in connection with a misprediction that was held to be
‘dishonest’, which arranges or brokers a derivatives product without acquiring any of the
property. Thus, in the context of a credit derivatives or some warrant issues or swaps
embedded in bond issues, there would be liability on the broker for taking ‘reckless risks’
even where that person does not receive any of the underlying property.93
IV.
General tort claims relating to suitability
The preceding discussion relates to the availability of proprietary remedies resulting from
equitable claims or restitutionary claims, as well as personal remedies based on both of
those codes. The following brief section considers the available common law claims
based on wrongs rather than on restitutionary or equitable motivations. There is a narrow
line in commercial reality between a wrong caused by one party arising out of negligence
and a wrong caused by a party arising out of dishonest assistance in a breach of trust. The
former is classified as a tort whereas the latter is classified as an action giving rise to a
personal remedy under constructive trust.94 The following remedies are available in
situations where the torts referred to have been committed. The reason for dealing with
these remedies separately is to evaluate, albeit briefy, the contexts in which the law of
tort would ordinarily deal with the termination of transactions, rather than the equitable
and restitutionary issues considered thus far.
It is contended that the expectations of commercial participants in the derivatives markets
would usually require more than damages equivalent to out-of-pocket loss where that
measure would not incorporate the full loss occasioned by the loss of proprietary rights in
property, or of the profits that would otherwise have been made had the property tied up
in the void transaction been available for other investment. The issue of physically-settled
transactions has been discussed. To some extent, tortious damages will deal with the loss
that is suffered from not having possession of the goods which were required under the
transaction as had been agreed to. However, with reference to transactions settled ‘either
92
Hanbury and Martin, Modern Equity, 13th edn., (Sweet & Maxwell, 1993), 666; Oakley (1995) 54 C.L.J.
377, 383.
93
This liability is different from the liability of a trustee in a eurobond transaction, for example: see
Tennekoon, Legal Aspect of International Finance (Butterworths, 1992).
94
The latter could also be explained as giving a remedy based on unjust enrichment. That it is said to be a
remedy in truth and not an institutional trust device is based on the fact that the award is purely personal in
nature and ordered to reverse the wrong that has been done.
way’,95 or transactions where a hedging position is lost because of the failure of the
commercial effects of the transaction,96 the tortious damages approach will not
necessarily equate with the contractual expectation of rights in property or damages
which include, for example, compound interest to reflect the expectation of the increased
profit secured by a right in property. Where the contract is not enforced by the courts, this
common intention would be frustrated, leaving only restitutionary claims or claims in
tort.
Wrongs in selling swaps
The Dharmala case
Perhaps the leading case in this area is the decision of Mance J. in the case of
Dharmala.97 This case summarises precisely the issues which are specific to the selling of
financial derivatives in general and interest rate swaps in particular.98 It is therefore
proposed to consider the range of claims and factual issues which arose in that litigation
before referring them to the specific discussions of each form of contractual, tortious,
equitable and restitutionary liability considered below.
Bankers Trust (BT) sold two forms of interest rate swap to Dharmala (DSS) on which
DSS lost money. The litigation centres on BT’s attempts to recover money owed to it
under the transactions and DSS’s concomitant attempts to deny any liability for amounts
owed under the transactions. DSS argued most of the range of tortious and contractual
claims considered in this Suitability section: the concept of the unsuitability of the
products sold appears in their basic contentions. DSS contended that BT were liable for
negligent misrepresentation, deceit in the course of selling the products, and breach of
contract.
DSS was an Indonesian entity with whom BT had had dealings before. On the facts
ultimately Mance J. found that the employees of DSS involved in the transaction had
received sufficient attention and advice from BT. Furthermore, however, it was found
that in DSS, BT had a counterparty who could be expected to have some experience of
the financial derivatives markets, being a financial institution, despite the complexity of
the products which BT were designing. Importantly, it could be anticipated that DSS
would be able to undertake their own evaluation of the products which were suggested to
them by BT. However, Mance J. highlights the need to consider the specific relationship
between buyer and seller before reaching a decision on the precise nature and extent of
the obligations owed.
95
That is, transactions which are capable of being translated into either cash-settled or physically-settled
transactionsat the option of the buyer.
96
Which would not appear to satisfy the test for proximity arising out of the decision of the Court of
Appeal in Kleinwort Benson v. Birmingham C.C.[1996] 4 All E.R. 75..
97
Bankers Trust International PLC v. PT Dharmala Sakti Sejahtera [1996] CLC 518; see also Picarda,
“Interest Rate Swap Agreements in the Courts” [1996] BJIBFL 170.
98
For a particularly useful summary of the decision, see the Financial Law Panel’s “Bankers Trust v. PT
Dharmala Sakti Sejahtera: Case Summary” (London, Financial Law Panel, January 1996).
The nature of the claims
In response to BT’s action for money owed, DSS counter-claimed a long series of
common law actions which revolve around the common theme of the suitability of the
products sold and the manner in which they were sold and manufactured.99
The claims based on consent, as that term is defined for the purposes of this discussion,
were as follows. First, that BT misrepresented the terms of Swap 1. DSS claimed in
particular that it had been led to believe that the products had a low likelihood of
generating a loss for DSS. DSS also contended misrepresentation on the basis that it
understood that complete and accurate economic information had been supplied by BT
which induced DSS to enter into the transactions. DSS also relied on alleged
representations that BT would replace the transactions at no cost if there were some loss
to DSS. The same arguments related to Swap 2 with the addition of an argument that BT
had represented that Swap 2 would be better for DSS than Swap 1.
Second, DSS argued that there had been deceit on the part of a specific employee of BT.
On these facts DSS alleged that BT had represented that there could only be profit under
the transactions, whereas correspondence and marketing material made little or no
mention of the risks involved. Third, it was contended that BT’s alleged representation
that the transactions would be replaced at no cost constituted a collateral contract, if not a
term of the contract itself. The claim on behalf of the buyer is this supported by
allegations relating to conversations and communications passed between its agents and
the seller’s agents. In circumstances where there is little or not documentation100 it
becomes more difficult for the seller to establish the full extent of the obligations which
were agreed between the parties. Reliance solely on tape recorded evidence of
conversations and the buyer’s understanding of those issues which must have formed part
of its necessary understanding of the effectiveness of the contract, make it difficult for the
seller to demonstrate that its liability was to be restricted to particular express contractual
terms only.
Fourth, breach of duty culminating in negligence. DSS contended that BT were
experienced dealers in the products at issue in a way that DSS were not. Consequently,
DSS sought to fix BT with a duty in negligence to establish the level of competence
which DSS had, to explain all risks to DSS, to consider the particular objectives of DSS,
and to ensure DSS took independent advice. The further argument raised by DSS
revolved then around a presumed positive obligation on the part of the seller to consider
the particular objectives of DSS, and in particular whether or not there were other
products or methods which DSS could have used to achieve the risk management
requirements it had. The final argument that BT ought to have ensured that DSS took
independent advice strays close to undue influence without raising an argument that DSS
99
As a matter of Indonesian law, DSS also claimed that it did not have the capacity to enter into these
transactions. It is not proposed to consider this point of Indonesian law in the following discussion.
100
An issue which did not arise in Dharmala.
has necessarily been unduly influenced in a way which ought to have required
independent advice.101
Judging suitability
Mance J. held that in respect of the claim for misrepresentation most of DSS’s
contentions were simply not supported by the facts. His lordship was critical of BT
because the seller’s marketing material tended to emphasise the likelihood of gain rather
than the risks of the loss, and further that that material might have given a misleading
impression of the effect of the product. Mance J. found expressly that such a transaction
would have founded liability for the tort of misrepresentation in respect of an
inexperienced counterparty. On the facts, however, DSS appeared to be suitably
experienced and diligent to form its own, independent assessment of the effect and risk of
the swaps proposed by BT. Mance J. thus emphasises the relativity involved in assessing
potential liability in this context. A counterparty which was demonstrably incapable of
ascertaining the risks involved, or a counterparty which had not been as pro-active as
DSS in pursuing these particular structures and relying more on the seller, would appear
to have good grounds for a claim based on misrepresentation.
Second, in relation to deceit it was held on the facts that the particular employee of BT in
question was honest at all times and had no intention to deceive DSS, nor had he been
reckless as to whether or not he deceived DSS. Liability is therefore possible but subject
to the buyer’s claim coming up to proof. Third, as to the enforceability of the alleged
representation of replacement of the transaction at no cost, Mance J. found that it was
implausible to suggest that BT had offered to replace the transaction. On the facts, it
appeared that BT might have offered a restructuring package if the swap ultimately
proved to be unprofitable for DSS.
Fourth, as to the general claim based on “breach of duty”, Mance J. found that many of
DSS’s requirements for the swaps had not been communicated fully to BT to the extent
that the were alleged by DSS to have existed in any event. Further, economists’
predictions of the future movement of the US economy which had been supplied by BT
were reasonably made and based on detailed research. As such, it was held, BT ought to
have no liability based on the outcome of those economic predictions which had not, in
themselves, caused DSS to enter into the transactions.
Importantly, in general terms, there was no duty on BT to act as general advisor to DSS.
Furthermore, Mance J. was explicit in his finding that the courts should not assume such
duties in all cases. A duty of care, under any of the heads sought be DSS, should be
inferred only where it was justified on the particular facts. DSS were experienced in
financial matters and as such should be expected to understand the partially speculative
Similar perhaps to the obligations set out in Barclays Bank v. O’Brien [1994] 1 AC 180, although that
obligation to ensure taking of independent advice is strictly linked to the avoidance of constructive notice
of the undue influence or misrepresentation of another person in relation to mortgages and similar surety
arrangements.
101
nature of the transactions. On these facts, it was held, there was no reason for BT to be
saddled with a responsibility to advise DSS generally in the manner suggested by DSS’s
counter-claim.
Similarly, in Morgan Stanley UK Group v. Puglisi Cosentino102 the plaintiff bank, MS,
sold a principal exchange rate linked security (PERL) to the defendant, P. The PERL was
made up of a US$-denominated bond which would increase in value against redemption
where specified hard currencies depreciated in value, whereas soft currencies appreciated.
It was a part of the agreement between the parties that P would repurchase the security at
specified reset dates in the future and it was understood that MS would in fact rollover
the security at those times. In the event, devaluation of the Italian lira and the Spanish
peseta meant that MS did not rollover as expected. MS then sought US$ 6.6 million from
P when the PERL was sold at a loss. P claimed damages in similar amount under s.62 of
the Financial Services Act 1986 on the basis that MS had breached TSA rules.
It was found that the selling bank had been in breach of TSA rule 980.01 in advising P to
enter into the transaction as a private customer. The PERL constituted a contract for
differences within para. 9 of Sch. 1 of the Financial Services Act 1986. The contracts
therefore fell within r.1300.02 of the TSA Rules as being margined transactions in a
derivative instrument. Further MS was in breach of r.730 on the basis that the instruments
were not suitable transactions for P. It was a sufficient defence to the bank’s claim for P
to show that P would not have entered into the transactions if it had received proper
advice from MS, including an appropriate risk warning. There was, however, no evidence
of undue pressure having been put on P.
Comparison with the USA
The main litigation in the USA103 has concerned large corporate entities claiming
exploitation by financial institutions, Gibson Greetings v. Bankers Trust Co.104 and
Proctor and Gamble v. Bankers Trust Co.,105 or in relation to the powers of local
authorities, Orange County Investment Pool v. Merrill Lynch & Co.,106 and State of West
Virginia v. Morgan Stanley & Co. Inc.,107 among others.108 Where there is an interesting
overlap to observe is in the emergence of suitability as a concept within SFA regulation
in the UK109 akin to the concept of suitability within US regulatory regimes.110 In the US
102
[1998] C.L.C. 481.
See, for example, Henderson, “Derivatives Litigation in the United States”, Bettelheim, Parry and Rees
eds., Swaps and Off-Exchange Derivatives Trading: Law and Regulation (FT Law and Tax, 1996), 211.
104
Civil Action No. C-1-94-620 (S.D. Ohio, filed September 12, 1994).
105
Civil Action No. C-1-94-735 (S.D. Ohio, filed February 6, 1995).
106
Ch. 9 Case No. SA 94-22272-JR, Adv. No. SA 94-1045-JR (C.D.BR. Cal., filed January 12, 1995).
107
Civil Action No. 89-C-3700 (Cir. Ct. Kanawha Co.).
108
Chemical Bank v. Washington Power System 99 Wash. 2d 772 (1983); Lehman Bros. v. Minmetals 94
Civ. 8301 (S.D.N.Y.); Lehman Bros. v. China International 94 Civ. 8304 (S.D.N.Y.).
109
Rule 5-31, SFA Rules, considered in Financial Regulation below.
110
See for example, Craig and Hume, “Nightmare 2 - Customers: recent litigation between derivatives
dealers and their customers involving issues of fraud, breach of fiduciary duty, suitability, etc. and regulator
and industry response”, (1995) Columbia Law Review 167.
103
litigation, “suitability” emerged as a concept by which the liability of the seller could be
measured. Therefore, it crossed into substantive legal claims rather than remaining solely
applicable to regulatory rules.
The suitability claim in this context is said to fall into two forms: the pure suitability
claim and the disclosure suitability claim.111 The former relates to some contumelious
failure by the seller to deal with integrity and fairness; the latter refers to a failure on the
part of the seller to explain a material risk to an unsophisticated buyer. These potential
claims stem from the provisions of NYSE112 and NASD113 rule-books which create
suitability requirements. While it is not clear whether or not the courts would enforce
these rules as private law claims, the specific suitability requirements are said to
constitute bases on which the courts’ understanding of the nature of those claims should
be based. Contrary to the risks associated with mis-selling derivatives, there are the
personal risks taken by the officers of the buyer in entering into these products. In one
decided US case, directors have been held liable by shareholders for failing to protect the
company against market movements by means of hedging derivatives. 114 Alternatively,
those directors also run the risk of litigation where their use of derivatives causes loss to
the company.115
Tort of negligent misrepresentation
In order to recover damages based on the tort of negligent misrepresentation, the plaintiff
must establish that the defendant owed him a duty of care not to cause loss or damage of
the kind caused by breach of that duty. Three criteria for the imposition of a duty of care
in a particular situation: foreseeability of damage, proximity of relationship and
reasonableness.116
The first criterion is proximity. That is, the closeness and directness of the relationship
between the parties, is particularly important. In evaluating proximity in the context of
claims arising from inaccurate statements or advice, three factors are critical: purpose,
knowledge and reliance: meaning the purpose for which the statement was made and
communicated, the knowledge of the maker of the statement, and reliance by its recipient.
The position was expressed as follows by Lord Oliver in Caparo Industries plc v.
Dickman:117
Scott, “Liability of Derivatives Dealers”, Oditah ed. (Oxford, Clarendon Press, 1996), 271, 277.
New York Stock Exchange “Know Your Customer Rule”, CCH NYSE Guide, sec. 2405.
113
National Association of Securities Dealers’ Suitability Rule, CCH NASD Manual, sec. 2152 (Art. III,
sec. 2).
114
Brane v. Roth 590 NE 2d 587 (Ind App 1 dist 1992).
115
See Henderson, op cit, who explains that shareholders in Proctor and Gamble brought litigation against
directors of that company in the wake of litigation with Bankers Trust: Elaine Drage et al v. Proctor &
Gamble et al, Court of Common Pleas, Hamilton County, April 1994.
116
See Smith v. Bush [1990] 1 A.C. 861 (H.L.) at 865 per Lord Griffiths and also Caparo Industries plc v.
Dickman [1990] 2 A.C. 605.
117
[1990] 2 A.C. 605.
111
112
“What can be deduced from the Hedley Byrne118 case, therefore, is that the
necessary relationship between the maker of a statement or giver of advice (the
adviser) and the recipient who acts in reliance on it (the advisee) may typically be
held to exist where (1) the advice is required for a purpose, whether particularly
specified or generally described, which is made known, either actually or
inferentially, to the adviser at the time when the advice is given, (2) the adviser
knows, either actually or inferentially, that his advice will be communicated to the
advisee, either specifically or as a member of an ascertainable class, in order that
it should be used by the advisee for that purpose, (3) it is known, either actually or
inferentially, that the advice so communicated is likely to be acted upon by the
advisee for that purpose without independent inquiry and (4) it is so acted on by
the advisee to his detriment. That is not, of course, to suggest that these conditions
are either conclusive or exclusive, but merely that the actual decision in the case
does not warrant any broader propositions.”
The burden of proving each ingredient of this cause of action is upon the plaintiff. The
measure of damages is that appropriate to a claim in tort. The context of
misrepresentation is important for the seller of a derivative product who also gives advice
on which the other party reasonably relies. Particularly in new markets such as that for
credit derivatives where the buyer of the product is acquiring it to effect some form of
insurance for an exposure to a parties’ credit, or to speculate on that same credit, the
buyer will rely on the minutiae of the advice that is given by the seller. Typically, this
advice will be a mixture of fact, matter which is asserted to be fact, and opinion. Where
markets move unexpectedly, there will be a question as to whether or not the seller
asserted that the product would provide cover for those particular market movements.
Similarly, there will be the issue as to whether or not the seller made the buyer aware that
those particular risks were being taken. The issue of the ‘closer relationship’ will also
depend on whether the advice was taken at arm’s length in the market or whether the
buyer was used to relying completely on the advice given to it by seller: for example,
where the seller is the house lending bank to the seller.
It is contended that each of these factual situations may move closer to equity or
restitution. For example, where the seller is the house bank to the buyer, it might be that
there is some undue influence which could be said to result from the nature of the
relationship between those parties. For the seller to make profit and acquire property from
the buyer as a result of an abuse of position, would seem to require some restitutionary
response if the reliance could properly be classified as an ‘abuse’. There is nothing new
in the assertion that the edges of the lines between wrongs, obligations and equity or
unjust enrichment are potentially blurred. The aim of the suitability approach is to place
the appropriate tests in context such that the courts would have the flexibility to put the
parties in the position which they would have wished to occupy and which equity thinks
it appropriate for them to occupy.
Tort of negligent misstatement
118
[1964] A.C. 465.
All that is said above with reference to the tort of negligent misrepresentation in the
context of financial transactions, will hold true for negligent misstatement. In a number
of recently decided decisions, tort has expanded into the finance field with the effect of
broadening the potential liability of those selling financial products or making
representations as to the effect or suitability of such products. Important in this regard
was the decision in Possfund Custodian Trustee Ltd v. Victor Derek Diamond119 per
Lightman J, a case which concerned the liability of those preparing share prospectuses for
capital issues to those persons buying the shares in the secondary market, who would not
have been specifically within the contemplation of the person preparing the prospectus,
although they could have been expected to have relied on the information contained in it.
The test set out in this context drew on the principle in Hedley Byrne v. Heller, 120 when
Lightman J. held that:-121
“It is clearly established that in a case such as the present, where the defendants
have put a document into more or less general circulation and there is no special
relationship alleged between the plaintiffs and the defendants, forseeability by the
defendants that the plaintiffs would rely on the prospects for the purpose of
deciding whether to make after-market purchases is not sufficient to impose upon
the defendants a duty of care to the plaintiffs in respect of such purchases (see
Caparo Industries plc v. Dickman122). The imposition of a duty of care in such a
situation requires a closer relationship between representor and representee, and
its imposition must be fair, just and reasonable.”
There is some resonance of equitable principle in the application of the award here. That
the award must be ‘fair, just and reasonable’ moves closer to the tests of
unconscionability which Lord Nicholls was astute to deny as a general test in Royal
Brunei Airlines v. Tan.123 The suitability approach requires that inequitable wrongdoing
is capable of generating personal or proprietary remedies as appropriate. Evidently, there
will be overlaps between compensation or personal liability awards under equity and
damages awards under tortious principles. The primary distinction between the two codes
will be the availability of proprietary awards and awards such as compound interest.
Damages for breach of contract
Failure of the contract may, of course, arise in a number of contexts. Roughly those
contexts could be divided in a straightforward failure to perform the contract where
performance would be possible in legal terms, and cases in which the contract is not
performed because its performance is prohibited by law or by some court order. In
119
[1996] 2 All E.R. 774.
[1964] 2 A.C. 465.
121
In Possfund Custodian Trustee Ltd v. Victor Derek Diamond [1996] 2 All E.R. at 782.
122
[1990] A.C. 605.
123
[1995] 2 A.C. 378.
120
principle, a statement in a document selling a derivative product or in some conversation
between the trader and the counterparty may become incorporated as a term of the
contract between the counterparties. Where that term is material to the transaction and the
parties’ mutual intentions. It is submitted that the failure to perform such a term may
constitute a breach of the contract or may be bound up in some larger issue of the
efficacy of the contract. This latter option is over and above general damages for breach
of contract. It is not proposed to spend much time on breach of contract damages other
than to make the point that the test for suitability set out in this section is concerned with
the application of restitutionary and equitable principles to cases where financial
transactions cease to be operative. It is submitted that failure to perform a contract ought
to give rise to damages for breach of contract in the ordinary way. The situation
considered in the Islington appeal was one of absence or failure of consideration rather
than a failure by one of the parties to perform out of some contumelious intent. It is only
the situation of lack of capacity or of ability to perform that is meant to be covered by this
test of suitability.
V.
A new test of suitability
The following principles are prepared on the basis of analysis of the preceding discussion
of cases in equity and in restitution. They do not purport to be a straightforward
crystallisation of the principles as set out in those cases. However, they do purport to be a
feasible application of those principles to the context of the termination of commercial
transactions and the allocation of personal or restitutionary claims as a result. The section
immediately following the statement of principles seeks to demonstrate how those
principles should be applied in cases relating to financial derivatives to reach the most
equitable solutions to those legal issues which arose in the swaps cases.
1 - Equity Model
In considering commercial situations, the appropriate rules of equity should be:(a) remedy by means of an equitable proprietary remedy should be made available to a
party where: the contractual agreement between the parties allocates title to the property
transferred under the transaction; or
 if the parties were of unequal bargaining strength, the product or service
provided by the stronger party was provided in a context where the buyer
would normally rely on the advice of the seller and there was some undue
influence in the creation of that product; or
 if a risk was allocated between the parties, where as a result of some unjust
factor, the either party was caused to be unjustly enriched at the expense of the
other party; or
 if rescission is the appropriate remedy under a physically-settled transaction,
where the traceable proceeds of the original transfer remain in the hands of the
recipient; or
 the award of a proprietary remedy would accord with the common intention of
the parties set out in agreement between the parties.
(b) remedy by means of equitable compensation or by imposition of personal liability
under constructive trust should be made available to a party where a transaction is caused
to be terminated where: if a risk was not assumed by either party, where as a result of some unjust
factor either party was caused to be unjustly enriched at the expense of the
other party; or
 if a risk was taken by either party, that risk was a reckless risk for that party to
have taken in that context; or
 if the parties were of unequal bargaining strength, the product or service
provided by the stronger party was not suitable for the purposes of the weaker
party in the context of that transaction; or
 if rescission is the appropriate remedy under a cash-settled transaction; or
 if the risk taken, or the context in which the risk was taken, contravened some
principle of public policy or of statute or of some other mandatory rule of law
or equity.
2 - Restitution Model
Restitution by means of a personal remedy or by means of equitable compensation should
be made available to a party where a transaction is caused to be terminated as a result of
some event which occurred outwith the risks allocated expressly by the parties as part of
their transacting, where the non-allocation of that risk can be identified as being the fault
of one contracting party, particularly  if such risk was not assumed by either party, where as a result of some unjust
factor either party was caused to be unjustly enriched at the expense of the
other party; or
 if a risk was taken by the defaulting party, that risk was a reckless risk for that
defaulting party to have taken in that context; or
 if the parties were of unequal bargaining strength, the product or service
provided by the stronger party was not suitable for the contractually-identified
purposes of the weaker party in the context of that transaction; or
 if the risk taken, or the context in which the risk was taken, contravened some
principle of public policy or of statute or of some other mandatory rule of law
or equity.
Applying the suitability approach
The preceding outlines of the test follow on from the previous discussion of the
availability of equitable and restitutionary responses to the treatment of financial
transactions. In line with the discussion which opened this book it is appropriate to revisit
the themes and concerns which have brought us to this stage.
The Islington litigation has generated enormous concern among commercial people. At
one level that concern is simply grounded in the fact that the banks did not get what they
wanted. On another level the concern is based on a concern that the technical rules
surrounding compound interest precluded the parties from terminating their transaction
on payment of the amounts which commercial people would have expected to have
become due. There are larger concerns as to the efficacy of standard market agreements,
totally ignored by the English courts in the local authority swaps cases, which were
framed by market users as an ad hoc regulation of systemic risk in the derivatives market.
This failure to apply the terms of those contracts raises problems generally of the way in
which proprietary rights could be asserted in financial contracts in future in a way which
guards against the failure of the contract itself, and also of the ability of globalised
marketplaces to rely on English law to assist them in standardising risk by means of
documentation and thus controlling it.
There are a plethora of fascinating questions for the legal technician arising from that
same litigation. First is the conflict between equity and restitution. Restitution of unjust
enrichment is championed by a group of academics who see it as a means of balancing
out the laws of obligations and wrongs with a third code that prevents cases of injustice
slipping between the cracks in the common law and statute. The equity lawyers see that
as their preserve. As such, Lord Browne-Wilkinson went to great lengths in Islington to
dismiss the applicability or utility of Birks’ model of the resulting trust motivated by
restitution and to set out the fundamental principles of the law of trusts which were to
deal with the issue instead.124
124
Chapter 9.
The scope of the argument in the House of Lords was between the generations of
restitution lawyers (typified by Lord Goff), the traditional trusts lawyers (the majority in
the House of Lords in Islington) and the realpolitik commercial lawyers (typified by Lord
Woolf). Within these ranks are the new restitution lawyers such as Birks who are
motivated by more technically-focused analyses of property rules and unjust enrichment
than Lord Goff’s desire to achieve ‘justice’ through an award of compound interest.
Similarly, Lord Browne-Wilkinson is identified as a ‘traditional’ trusts lawyer in this
work despite countenancing a need for equity to develop in commercial situations and
move away rules which were originally founded to deal with family trust situations.125
Similarly, Hayton has argued for the introduction of a form of constructive trust which
gives the judges greater freedom to frame appropriate remedies for the facts in front of
them.126 This book has drawn on Hayton’s example to frame a form of common intention
constructive trust which would be suitable for equity to examine financial and
commercial transactions.
Second, among the interesting features of Islington is the role of risk in commercial
equity. While the courts in the swaps cases were quick to dismiss any argument based on
risk allocation (despite the terms of the contracts effected between the parties), there are a
number of recent cases dealing with equitable institutions and remedies which have
concentrated as risk as a lithmus test for the availability of the equitable response sought.
For example, the test for dishonest assistance expressly incorporates reckless risk-taking
as being among its definition of ‘dishonest’. Similarly, the allocation of risks in current
portfolio theory has played a part in understanding the duties of trustees in respect of the
investment of trust funds. The question is then the role of risk in deciding the allocation
of proprietary and personal rights in equity and restitution. There may be situations in
which the parties have sought to allocate risks and thereby rights in specific property or
to amounts of money. In such cases, the allocation should be protected as manifesting the
common intention of the parties. Alternatively, there may be situations where a party is
forced to take a risk which it did not intend to take. In such circumstances, the forced
taking of the risk ought to be remedied by a proprietary remedy which would place the
wronged party in the position it would have occupied but for that risk.127
Third, the concept of money itself continues to be difficult in English law. Apart from the
difficulty of seeing money as a physical chattel in all cases, there is a problem with
understanding the intangible nature of the property with which financial institutions are
concerned. In contracting a financial derivative, obligations are made and undertaken to
transfer amounts of value between electronic accounts. Therefore, there is a need for
English law to understand the nature of that value in property law terms. As discussed in
The Concept of Money128 there are difficult jurisprudential questions of the precise nature
of the property envisaged by English law when granting rights in rem.
125
Target Holdings v. Redferns [1996] 1 A.C. 421, [1995] 3 W.L.R. 352, [1995] 3 All E.R. 785.
Hayton [1990] Conv. 370; [1993] L.Q.R. 485.
127
The other party would simply need to re-price the transaction to absorb its own potential liability.
128
Chapter 4.
126
It is contended that contracts surrounding money held in electronic bank accounts ought
to consider property rights in terms of rights between individuals rather than as full rights
in rem.129 The money in the electronic bank accounts is ‘virtual money’. That is, there is
no money which has ever been deposited as notes and coins in a bank which is equal to
the amounts involved in those transactions. Rather the counterparties are trading value
held in bank accounts. That value is created in the form of debts with the institution
holding the account or loans which constitute permissions to pledge virtual money up to a
certain amount. It is difficult to see how there could ever be a right in rem in respect of
something which has never existed. There has never been ‘a thing’ which could be the
object of that right. Rather there is only ever an obligation to pay or receive amounts of
value by reference to a further chose in action - the bank account.
While such choses in action are themselves considered to be money, they are not chattels
in the manner which Lord Browne-Wilkinson considers them. Rather, they are
intangibles, promises to pay. They are ‘virtual’ money contracted in the virtual reality of
the financial markets. Therefore, in deciding whether or not a proprietary remedy is
appropriate, what is at stake is the size of the return which is to be awarded in respect of
value of that nature and that size. The issue for a proprietary remedy is the nature of the
obligation to pay. As considered by Lords Goff and Woolf, the justice of the situation
was that compound interest ought to be paid even though a proprietary remedy was
expressly disavowed by their lordships. That is the error, it is submitted, of the two
partially dissenting speeches in Islington. An award of compound interest in a situation
where value calculated in a particular currency is paid and owed, would be an award
based on continued ownership of that value throughout the life of the transaction. On the
facts in Islington that value had been transferred outright to the authority. Therefore,
when Lords Goff and Woolf refused a proprietary award but yet contend that compound
interest ought to be paid, they were granting a proprietary remedy in fact. The logical
leap in their reasoning was not accounting for the nature of the property. The property
was value held in an electronic bank account - an obligation to pay money. This fits more
closely with Hohfeld’s analysis of property rules as being obligations between persons
rather than being ‘rights in a thing’.
Third, following on from the discussion of the nature of ‘money’, is the problem of
reserving proprietary rights over such property or ensuring some means of credit support.
This cuts to the heart of the use that commercial markets make of English property law.
Failure to support the common intentions of commercial people to rights in property, or
awards tantamount to such rights, weaken the confidence of all users in that code. On the
agreements before the courts in the swaps cases there must be some doubt as to the
efficacy of the proprietary claims made by the banks. The BBAIRS agreement130 and the
ISDA agreement131 simply did not protect the participants in the manner they would have
wanted. However, that does not satisfy a need for the courts to examine the extent of
those shortcomings and to give some clue as to the future. It is contended that the
An issue explored in Eleftheriadis, ‘The Analysis of Property Rights’ (1996) O.J.L.S. 31; discussing the
ideas of Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, ed. Cook (1923).
130
British Bankers’ Association, BBAIRS Agreement for Interest Rate Swaps (London, BBA, 1987).
131
ISDA, ISDA Multicurrency Master Agreement (ISDA, 1992).
129
suitability approach, specifically through the use of common intention constructive trusts
and the doctrine of undue influence, ought to be able to regulate the availability of
proprietary rights and security for commercial transactions.
Fourth, the approach of equity to commercial cases in decisions involving and
contemporaneous to the swaps cases demonstrates a significant undercurrent of change in
the form of its principles. The test for a constructive and resulting trust in Islington,132 the
test for dishonesty in Tan133 and the drift of common intention constructive trusts cases
like Lloyds Bank v. Rosset134 in the speech of Lord Bridge, have seen a solidifying of the
techniques of equity into hard and fast rules. While common law appears to loosening
itself in the torts discussed above, equity is moving in the opposite direction. As such it is
proposed that the suitability approach outlined above constitutes a part of this
reformulation of equity in response to changing subject matter.
Fifth, the question remains: what is a swap? This book has sought to explain in a little
more detail than the swaps cases did the breadth of the derivatives firmament and also to
consider the different impacts of the various possible analyses of similar transactions.
The core of this analysis is based on swaps pricing models and credit risk models, both of
which are central to the formation of a derivative. Rather than viewing a swap as a
transaction which is always the same as the one before and the one after, it is important to
construe financial derivatives in the same way that other commercial and shipping
contracts are typically construed in detail. To achieve this construction it is important to
look at the commercial purpose of the transaction. That commercial purpose (be it
hedging, speculation or otherwise) will indicate the appropriate analysis of the
transaction. Consequently, the appropriate equitable or restitutionary response will
emerge.
The approach of this book has been to analyse complex legal material in the context of
changing and ever more complex world. The sociology of late twentieth century western
economies has changed rapidly over the last two decades. The establishment of a
globalised economy, increased use of supra-national entities such as the EU and the UN,
a growth in supra-national regulation, the entrenchment of mass unemployment in most
economies, demographic shifts towards a population which is living longer with a
shrinking number of people paying tax, and the growth of information technology all
offer a very new context for the courts in considering commercial transactions.
While this book has argued for a different approach from the courts to complex financial
and commercial transactions, it has not sought to protect those markets mindlessly or
even to argue that the swaps cases were wrongly decided on their facts given the
shortcomings of the standard market contracts used at the time. The broader
understanding which informs this book is that the world is becoming a more complex
place in which it is less possible for the courts to rely on the breadth of arcane equitable
principles such as ‘he who comes to equity must come with clean hands’ in situations
132
[1996] A.C. 669.
[1995] 2 A.C. 378.
134
[1991] 1 A.C. 107.
133
where commercial people are creating contracts born out of complex mathematical
understandings of the world. For the autopoietic theorists this is a situation in which
different social systems have failed to meet and communicate. The legal system has not
been able to translate the operations of the global financial system in a way that enables
one to understand the complexities of the other. The result is a continuation of the
doctrinal conflicts within the English legal system and a problem for the financial world
to ensure that their transactions are properly secured.
For the sociologists like Giddens globalisation is something broader than the operation of
financial markets across geographic boundaries.135 Globalisation refers to a systematic
change in social relations. While it incorporates the growth of international and supranational control of government, administration, regulation and economics, it also refers to
a centralisation of governmental power away from local authorities while at the same
time requiring the individual to make more decisions which would otherwise have been
made for them. At one level, this arises from the deconstruction of economies built
around heavy industry together with the broadening of economic opportunity. The range
of options produced creates problems for the individual in a way which a lack of choice
never did.136 The financial derivatives market is an illustration both of the growth of
international possibilities for action with a greater range of choices for actors. The ability
to speculate through derivatives without needing to enter into a market physically is one
manifestation of this globalisation, as is the ability to restructure contractual loan
obligations through interest rate swaps. The techniques, in the best postmodern tradition,
are both simple and very complex. The swaps cases have shown English law to be caught
between very simple, intuitive ideas and subject matter too complex to analyse closely.
The role of restitution and of equity is to address itself to that form of social realignment:
to provide justice in a more difficult and more complicated world than the one which
produced them originally.
135
136
Giddens, Beyond Left and Right, (Polity Press, 1994).
Giddens, Modernity and Self-Identity, (Polity Press, 1991).